Court Snubs Wind Foe's Claims, Sparking Push to Revise Zoning

Strict zoning regulations may have brought windpower development to a grinding halt in Emmet County but, encouraged by a court decision involving residential turbines in nearby Leelanau County, a local wind turbine installer is pushing back.

Chris Stahl, of Lake Effect Energy, wants Emmet County to revise its windpower zoning ordinance, which effectively bans the machines, including the small, home-scale variety that he erects for clients around northern Michigan.

“Emmet had enacted a new, stricter ordinance in 2009. Then, in 2010, facing questions about the ordinance’s 35-decibel limit on turbine noise—which is slightly louder than a whisper—officials hired Richard James, of Okemos-based E-Coustic Solutions, to make a presentation supporting their limit. After his presentation, county zoning officials voted to keep the limit at 35 decibels.

Tairui Windpower Co.

Consultant Rick James convinced Emmet County to effectively ban even small-scale wind turbines, but his work drew criticism—and defeat—in a recent court case.

But, the following year, Mr. James’ claims about turbine noise encountered strong skepticism at the Leelanau trial, where he testified for a couple trying to force neighbors to take down their small turbine.

At the trial, an acoustic engineer testified that Mr. James measured the turbine’s noise incorrectly. Circuit Court Judge Thomas Power, after expressing doubt during the trial about some of Mr. James’ assertions, visited the turbine site and observed that the turbine could barely be heard at the plaintiff’s home, and then only under certain conditions. He ruled that the machine could stay up.

Now turbine-installer Stahl is using the Leelanau case to raise questions about Mr. James’ work for Emmet officials and urging them to reconsider their 35-decibel limit.

Mr. James has been hired by dozens of groups around the country to help convince local zoning boards to stop windpower development in their communities. His slide presentation claims that wind turbine noise harms public health and exposure to it should be strictly limited.

Mr. Stahl said he’s well aware of Mr. James, as are his fellow small wind turbine installers around the country.

“There are maybe 80 of us,” he noted, “and we all know about this guy. He is a hired gun. If a county wants an anti-wind ordinance, that is who they go get.”

Mr. James has had notable success, including in Emmet, in encouraging strong legal barriers against windpower development. But the Leelanau trial indicated that Mr. James’ work might not be helpful to officials seeking genuinely unbiased, science-based guidance on how to zone for wind power.

Why 35 Decibels?
The Emmet County Planning Commission originally considered a 55-dB sound limit at adjacent property lines—a sound level somewhat quieter than that of a clothes dryer, as suggested by non-binding State of Michigan guidelines. But, after hearing claims that turbines produce large amounts of infrasound (ultra-low-frequency sound that humans typically can’t hear), and that infrasound can be harmful to humans, the commission reduced the limit.

“When we talked about going from 55 dB and dropping it,” said Kelly Alexander, an ECPC board member, “it’s trying to compensate for that infra-noise.”

While reading news articles, research papers, public testimony, and other documents, then-planning director Brent Michalek saw references to noise consultant James. When Mr. Michalek learned that he lived in Michigan, he hired him. The county paid $1,852.50 for his November 2010 presentation to ECPC, including $350 in travel expenses.

While reading news articles, research papers, public testimony, and other documents, then-planning director Brent Michalek saw references to Mr. James, who argues for an even lower, 30-decibel limit on turbine noise. So, when questions were raised about the 35-decibel limit, Mr. Michalek hired the noise consultant to present his arguments. Emmet paid $1,852. 50, including $350 in travel expenses, for his November 2010 presentation to the planning commission.

To forego these alleged risks, Mr. James said, Emmet County should exercise his version of the “precautionary principle”—“If an action or policy might cause harm to the public or to the environment, the action or policy should be prohibited.”

The Emmet officials eventually decided to keep their 35-decibel limit, rather than raise it.

Exclusionary Zoning
Mr. Stahl, whose company is based in Harbor Springs, said that a 35-dB limit makes turbine development impossible because it requires placing the machines 750 feet from all property lines. That usually would mean placing them in the exact center of a 20-acre tract.

But that virtually eliminates erecting even small-scale turbines anywhere in the county because, the installer explained, turbines should be placed where the wind is best for maximum power output, and the exact center of a property can be a terrible location.

“If I were to study every parcel available (in Emmet County),” Mr. Stahl asserted, “there would probably be very few that would be suitable for installation of a wind system and make it feasible.”

Emmet’s zoning has already stopped a utility-scale wind power development dead in its tracks. Balance4Earth LLC, a Detroit-area company, proposed a wind farm in Emmet’s Bliss Township.

But the new rule, according to a company presentation to ECPC, “inhibits the development of an efficient wind farm.” The presentation adds, “It is not clear what the goal of the regulation is by placing a limit of 35 dB at the property line,” and that the limit “has no clear scientific basis.”

The 35 dB limit is the only thing stopping B4E’s 2- to 2.5-megawatt, 6- to 16-turbine wind farm, according to Martin Neals, who represented Balance4Earth in Emmet County.

“It is exclusionary zoning,” Mr. Neals said. “There is no place in Emmet County where you can build a turbine.”

Frustrated Farmers
Emmet County’s noise limit also frustrates the couple that hired Mr. Stahl to install a small turbine for their farm.

Unaware that ECPC had changed the rules, Craig and Mary Rapin applied for a permit for a 60-foot, 11-kW turbine at their 45-acre organic farm in November of 2010, a year after the new zoning was established. Their application was denied.

The Rapins, who own Bliss Gardens Farm and Community Kitchen, in Cross Village, have an ideal wind site: Mr. Stahl rated it “9 out of 10” for windpower potential—winning them a USDA Rural Energy for America grant and a federal income tax credit. That cut the original $134,000 price tag in half.

But the 35-dB limit intervened.

“The federal government, the USDA, the State of Michigan—all of these big entities—are promoting alternative energy,” Mr. Rapin said, “but we can’t do it because our county has made the ordinance so restrictive.”

They applied for a zoning variance, but were denied. Then they tried assembling a “zoning lot,” which lets landowners group their properties as one zoned parcel, allowing the 35-dB limit to apply at the edges of the much larger, aggregated properties. All but one neighbor agreed; the dissenter cited turbine noise problems he saw on YouTube.

After a year of bureaucratic maneuvering, the Rapins did finally win a variance for a permit last December, albeit with remarkably stringent conditions: an automatic turbine shut-off triggered by too much noise, “a bi-monthly report of wind noise …for as long the turbine is up,” and stopping the machine if anyone complains, until the complaint is resolved.

That will cost between $2,000 and $2,500, plus another $2,500 for a third-party engineer to do a follow-up assessment, according to Tom Gallery, of North Wind Measurement, who consulted for Emmet County on the technical aspects of the arrangement. Ironically, Mr. Gallery also successfully testified in the Leelanau trial against Mr. James’ sound-measurement approach.

Mr. Stahl, meanwhile, is still waiting to hear back from the state attorney general’s office about a complaint he filed against Emmet County’s Planning and Zoning Department in June. The Public Integrity Unit, which investigates public corruption, is handling the complaint and could investigate the zoning department.

After initially confirming the investigation, PIU officials have not returned Great Lakes Bulletin News Service’s multiple follow-up inquiries.

Credibility on Trial
The Leelanau trial occurred last December; during those proceeding, Mr. James testified as an expert witness for Kay and Richard Kobetz, who sued Shandy and Penny Spencer in January 2011, shortly after they installed a small turbine at their lavender farm, in Centerville Township.

The suit complained that the turbine degrades their home’s value, produces nausea-inducing “shadow flicker,” and is intolerably noisy.

But, during the trial, Mr. James’ testimony and the Spencer’s own noise expert, Mr. Gallery—who said he’s advocated both for and against specific windpower developments—apparently convinced the judge that there were errors in Mr. James’ claims.

In an unpublished report written by Mr. Gallery after the trial, he summarized the points he made in his deposition and at trial, highlighting what he said were serious flaws in how Mr. James measures and analyzes sound.

For example, to determine ambient noise levels at the Kobetz home—a crucial factor in determining whether a turbine would be heard amid leaf rustling, traffic, and other outdoor noises—Mr. James took only eight hours of sound measurements, even though, according to Mr. Gallery, 500 to 1000 hours would be required to obtain the roughly 48 hours of useable data that the American National Standards Institute recommends.

Mr. James claims on his resume that at one time he sat on the committee that produced that recommendation, but is no longer associated with it. He is also a longtime member of the Institute of Noise Control Engineering, but says he has not taken the INCE Professional Examination for Board Certification.

During the trial, according to Mr. Gallery, the judge was skeptical of Mr. James’ claims about his methods and of his theory “that the National Renewable Energy Lab has been charged by the Department of Energy to hide any test data that may be detrimental to the wind industry.”

“Rick James,” Mr. Gallery wrote, after observing Mr. James in court and analyzing his Kobetz property noise measurements, “is a master of cherry picking. He finds an event or study and then amplifies the results or misinterprets the report to prove his point.”

Meanwhile, in Emmet County, Mr. Stahl said that he and the Rapins would fulfill the extra requirements the county set when it granted a variance to finally erect a small turbine on their property. He added that, so far, his push to change Emmet’s ordinance has not succeeded.

“We were trying to go in and say look, this guy who charged public dollars is really not credible and we need to go back and relook at this zoning ordinance,” he said of his latest attempt, which occurred last month.

“So they issued a statement saying that the gentlemen that they hired had nothing to do with their decision,” he said of the officials who listened to his renewed push for a higher sound limit. “Their planning and zoning director, Tammy Doernenburg, denied that Rick James had anything to do with the 35-decibel limit. Yet they spent almost $2,000 to bring him in. So I guess it must have just been for a dog and pony show.”

“We are going to meet all the criteria (at the Rapin farm),” Mr. Stahl said of the conditions Emmet imposed for the proposed turbine. “What we are hoping is that they will eventually realize that nobody’s eyeballs are going to pop out of their head from the noise. We will just keep backing them into a corner until we and the county get this zoning right.”

Part II of this article inspects the research that Mr. James uses, the complaints of several researchers who claim he repeatedly misuses their work, and recent, peer-reviewed studies that question two of his basic assertions.

Correction: An earlier version of this story incorrectly stated that Emmet officials consulted with Mr. James before lowering the county turbine noise limit to 35 decibels. In fact, the officials consulted with him after the new, lower noise limit was in place and, based on that consultation, decided to keep the strict limit. We apologize for the error.

Andrew Willens is an Emmet County native and a recent graduate of Oberlin College who has interned at MLUI since June of 2011. Reach him at awillens@oberlin.edu. The Institute’s senior editor, Jim Dulzo, also contributed to the article. Reach him at jimdulzo@mlui.org.